What is a Living Will?

The terms "living will", "health care directive", and "advance directive", all refer to the legal document that lets people state their wishes for end-of-life medical care.

A living will, despite its name, isn't at all like the wills
that people use to leave property at their death. A living will, also
called a directive to physicians or advance directive, is a document
that lets people state their wishes for end-of-life medical care, in
case they become unable to communicate their decisions. It has no power
after death.

If you’re helping someone with their estate planning (or doing your
own), don’t overlook a living will. It can give invaluable guidance to
family members and healthcare professionals if a person can’t express
his or her wishes. Without a document expressing those wishes, family
members and doctors are left to guess what a seriously ill person would
prefer in terms of treatment. They may end up in painful disputes, which
occasionally make it all the way to a courtroom.

How to Create a Living Will

The requirements for a living will vary by state so many people hire a lawyer to prepare their living will. Most people can create this simple document - along with the other typical estate planning documents - without the high legal fees by using a quality software application that accounts for their state's laws. If you need to write or update a will or trust, you can take care of your living will at the same time.

Making Your Own Living Will

You can create a legally binding health care directive (living will) without paying an attorney by using reputable estate planning software, like Nolo’s award winning WillMaker Plus. In addition to a living will, you can create a complete set of estate planning documents including your will, power of attorney, living trust, and more.

How Living Wills Work

Many states have forms for advance directives, allowing residents to
state their wishes in as much or as little detail as they’d like. For
example, it’s common to direct that “palliative care”—that is, care to
decrease pain and suffering—always be administered, but that certain
“extraordinary measures,” like cardiopulmonary resuscitation (CPR) not
be used in certain circumstances.

To be valid, a living will must meet state requirements regarding
notarization or witnesses. A living will can be revoked at any time. The
document can take effect as soon as it’s signed, or only when it’s
determined that the person can no longer communicate his or her wishes
about treatment. Even if it takes effect immediately, doctors will rely
on personal communication, not a document, as long as possible.

Powers of Attorney for Healthcare

Living wills are often used with a document called a durable power of
attorney (DPOA) for healthcare. In some states, in fact, the two
documents are combined into one. A DPOA appoints someone to carry out
the wishes about end-of-life treatment that are written down in a living
will or medical directive. The person named is called the “agent,”
“healthcare proxy,” or “attorney-in-fact” of the person who makes the
DPOA.

Living Wills After Death

Any authority granted by a living will ends when the person who made
the document dies, with the single exception that some living wills or
powers of attorney give healthcare agents the power to make decisions
about organ donation or autopsy. But because those decisions must be
made very soon after death, the authority is not long-lasting.

Again, this is in sharp contrast to a regular “last will and testament,” which has no effect when the will-maker is alive but becomes legally binding at death.